[Infowarrior] - EU declares war on ACTA

[Richard Forno]

Joint European Parliament ACTA Transparency Resolution Tabled, Vote on  
Wednesday

http://www.michaelgeist.ca/content/view/4848/125/

Tuesday March 09, 2010

A joint resolution on Transparency and State of Play of ACTA  
negotiations from virtually all party groups in the European  
Parliament was tabled earlier today.  It will debated tonight and  
faces a vote on Wednesday.  If approved, the resolution marks a major  
development in the fight over ACTA transparency.  It calls for public  
access to negotiation texts and rules out further confidential  
negotiations.  Moreover, the EP wants a ban on imposing a three- 
strikes model, assurances that ACTA will not result in personal  
searchers at the border, and an ACTA impact assessment on fundamental  
rights and data protection.  The full resolution:

The European Parliament,
–     having regard to Articles 207 and 218 TFEU
-    having regard to its Resolution of 9 February 2010 on a "Renewed  
Framework Agreement between the Parliament and the Commission for the  
next legislative term" (B7-0091/2010)
–     having regard to its Resolution of 11 March 2009 on "Public  
access to European Parliament, Council and Commission documents  
(recast)" to be considered as Parliaments position in First Reading   
(COM(2008)0229 – C6-0184/2008 – 2008/0090(COD))
–     having regard to its Resolution of 18 December 2008 on "the  
impact of counterfeiting on international trade" (2008/2133(INI))
-    having regard to the Opinion of the European Data Protection  
Supervisor of 22 February 2010 on "the current negotiations by the  
European Union of an Anti-Counterfeiting Trade Agreement (ACTA)"
-    having regard to the Charter of Fundamental Rights of the  
European Union, and in particular its Article 8,
-    having regard to Directive 2002/58/EC of European Parliament and  
Council concerning the processing of personal data and the protection  
of privacy in the electronic communications sector, as last amended by  
Directive 2009/136/EC of the European Parliament and of the Council of  
25 November 2009
-    having regard to Directive 2000/31/EC of European Parliament and  
Council of 8 June 2000 on certain legal aspects of information society  
services, in particular electronic commerce, in the Internal Market  
(Directive on Electronic Commerce)
-    having regard to Rule 110 of its Rules of Procedure,

A.    whereas in 2008 the European Union and other OECD countries  
opened negotiations on a new plurilateral agreement designed to  
strengthen the enforcement of Intellectual Property Rights (IPRs) and  
combat counterfeiting and piracy (Anti-Counterfeiting Trade Agreement  
- ACTA), and jointly agreed on a confidentiality clause,

B.    whereas in its report of 11 March 2009 Parliament called on the  
Commission to "immediately make all documents related to the ongoing  
international negotiations on the Anti-Counterfeiting Trade Agreement  
(ACTA) publicly available",

C.    whereas the Commission on 27 January 2010 assured its commitment  
to a reinforced association with Parliament in the terms of its  
Resolution of 9 February 2010 on a renewed Framework Agreement with  
the Commission, demanding "immediate and full information at every  
stage of negotiations on international agreements, in particular on  
trade matters and other negotiations involving the consent procedure,  
to give full effect to Article 218 TFEU",

D.    whereas Council representatives have attended ACTA negotiation  
rounds alongside with Commission representatives,

E.    whereas the Commission as guardian of the Treaties is obliged to  
uphold the acquis communitaire when negotiating international  
agreements affecting legislation in the EU,

F.    whereas, according to documents leaked, the ACTA negotiations  
touch, among others, on pending EU legislation regarding the  
enforcement of IPRs (COD/2005/0127, Criminal measures aimed at  
assuring the enforcement of intellectual property rights, (IPRED-II))  
and the so-called "Telecom Package", and on existing EU legislation  
regarding E-Commerce and data protection,

G.    whereas the ongoing EU efforts to harmonise IPR enforcement  
measures should not be circumvented by trade negotiations which are  
outside the scope of the normal EU decision-making processes,

H.    whereas it is crucial to ensure that the development of IPR  
enforcement measures is accomplished in a manner that does not impede  
innovation or competition, undermine IPR limitations and personal data  
protection, restrict the free flow of information, or unduly burden  
legitimate trade,

I.     whereas any agreement reached by the European Union on ACTA  
must comply with the legal obligations imposed on the EU with respect  
to privacy and data protection law, as notably set forth in Directive  
95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the  
European Court of Human Rights and of the Court of Justice,

J.    whereas the Treaty of Lisbon is in force since 1 December 2009,

K.    whereas as a result of the entry into force of the Lisbon  
Treaty, the Parliament will have to give its consent to the ACTA  
Treaty text, prior to its entry into force in the EU,

L.    whereas the Commission committed itself to provide immediate and  
full information to the European Parliament at every stage of  
negotiations on international agreements,

1.    Reminds that the Commission has since the 1 December 2009 the  
legal obligation to immediately and fully inform the European  
Parliament at all stages of international negotiations;

2.    Expresses its concern over the lack of a transparent process in  
the conduct of the ACTA negotiations which contradicts the letter and  
the spirit of the TFEU; is deeply concerned that no legal base has  
been established before the start of the ACTA negotiations and that no  
parliamentary approval has been asked for the mandate;

3.    Calls on the Commission and Council to grant public and  
parliamentary access to ACTA negotiation texts and summaries in  
accordance with the Treaty and the Regulation 1049/2001 on Public  
Access to Documents;

4.    Calls on the Commission and Council to pro-actively engage with  
ACTA partners to rule out any further negotiations of an a piori  
confidential nature and to timely and entirely inform Parliament about  
its initiatives in this regard; expects the Commission to make  
proposals already prior to the next negotiation round in New Zealand  
in April 2010 and to demand that the issue of transparency is put on  
the agenda of that meeting, and to refer to Parliament the outcome of  
this round immediately after its conclusion;

5.    Stresses that, unless the Parliament is immediately and fully  
informed at all stages of the negotiations, Parliament reserves its  
right to take suitable action, including bringing a case before the  
Court of Justice in order to safeguard its prerogatives;

6.    Calls on the Commission to conduct an impact assessment of  
ACTA's implementation on fundamental rights and data protection, on  
the ongoing EU efforts to harmonise IPR enforcement measures, and on E- 
Commerce, prior to any EU agreement to a consolidated ACTA treaty  
text, and to timely consult with Parliament about the results of this  
assessment;

7.    Welcomes affirmations by the Commission that any ACTA agreement  
will be limited to the enforcement of existing IPRs, with no prejudice  
for the development of substantive IP law in the European Union;

8.    Calls on the Commission to continue the negotiations on ACTA in  
order to improve the effectiveness of the IPR enforcement system  
against counterfeiting;

9.    Urges the Commission to ensure that the enforcement of ACTA  
provisions - especially its provisions on copyright enforcement  
procedures in the digital environment - are fully in line with the  
acquis communitaire; demands that no personal search is undertaken at  
the EU borders and requests full clarification of any clauses that  
would allow for warrantless searches and confiscation of information  
storage devices, such as laptops, cell phones and MP3 players, by  
border and customs authorities;

10.    Considers that in order to respect fundamental rights such as  
freedom of expression and the right to privacy, with full respect for  
subsidiarity, the proposed Agreement must refrain from imposing any so  
called "three strikes" procedures, in full respect of the decision of  
Parliament on article 1.1b in the (amending) Directive 2009/140/EC  
that calls to insert a new para 3 a to article 1 Directive 2002/21/EC  
on the matter of  "three strikes"

11.    Emphasizes that privacy and data protection are core values of  
the European Union, recognised in Article 8 ECHR and Articles 7 and 8  
of the EU Charter of Fundamental Rights, which must be respected in  
all the policies and rules adopted by the EU pursuant to Article 16 of  
the TFEU;

12.    Instructs its President to forward this resolution to the  
Commission, the Council and the Governments and Parliaments of ACTA  
negotiation participants.